[Federal Register Volume 74, Number 104 (Tuesday, June 2, 2009)]
[Rules and Regulations]
[Pages 26281-26285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12680]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1467

RIN 0578-AA47


Wetlands Reserve Program

AGENCY: Natural Resources Conservation Service and Commodity Credit 
Corporation, United States Department of Agriculture.

ACTION: Interim final rule; amendment with reopening of public comment.

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SUMMARY: The Natural Resources Conservation Service (NRCS) published in 
the Federal Register of January 15, 2009, an interim final rule with 
request for comment amending the program regulations for the Wetlands 
Reserve Program (WRP) to incorporate programmatic changes authorized by 
the Food, Conservation, and Energy Act of 2008 (2008 Act). The January 
15, 2009 interim final rule changed the nature and scope of the 
agreement NRCS enters into with the landowner under a WRP easement in a 
manner which could interfere with the restoration efforts of some lands 
enrolled in the program. Since the change to the program was not 
necessitated by the 2008 Act, this amendment to the January 15, 2009 
interim final rule revises these provisions to further the practical 
administration of the program consistent with the WRP statute. This 
amendment re-opens the public comment period for the interim final 
rule, as amended, for an additional 30 days.

DATES: Effective Date: The rule is effective June 2, 2009.
    Comment Date: Submit comments on or before July 2, 2009. In 
addition, the comment period for the WRP Interim Final Rule published 
on January 15, 2009 (74 FR 2317) is hereby re-opened and comments must 
be received on or before July 2, 2009.

ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08013) using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments 
electronically.
     Mail: Easements Programs Division, Department of 
Agriculture, Natural Resources Conservation Service, Wetlands Reserve 
Program Comments, Room 6819 South Building, Washington, DC 20013.
     Fax: (202) 720-9689
     Hand Delivery: USDA South Building, 1400 Independence 
Avenue, SW., Room 6819, Washington, DC 20250 between 9 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays. Please ask the guard at 
the entrance to the South Building to call (202) 720-4527 in order to 
be escorted into the building.
     This interim final rule may be accessed via Internet. 
Users can access the NRCS homepage at http://www.nrcs.usda.gov/; select 
the Farm Bill link from the menu; select the

[[Page 26282]]

Interim final link from beneath the Final and Interim Final Rules Index 
title. Persons with disabilities who require alternative means for 
communication (Braille, large print, audio tape, etc.) should contact 
the USDA TARGET Center at: (202) 720-2600 (voice and TDD).

FOR FURTHER INFORMATION CONTACT: Director, Easement Programs Division, 
Department of Agriculture, Natural Resources Conservation Service, Room 
6819, P.O. Box 2890, Washington, DC 20013-2890; Phone: (202) 720-1854; 
Fax: (202) 720-9689; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget reviewed the January 15, 2009 
interim final rule and determined that it was an economically 
significant regulatory action since it results in an annual effect on 
the economy of $100 million or more. Pursuant to Executive Order 12866, 
NRCS conducted a cost-benefit analysis of the potential impacts 
associated with the interim final rule for WRP published in the Federal 
Register on January 15, 2009. The provisions of this interim final rule 
do not alter the analysis that was originally prepared. The 
administrative record is available for public inspection in Room 5831 
USDA South Office Building, 1400 Independence Avenue, SW., Washington, 
DC. A copy of the analysis is available upon request from the Director, 
Easement Programs Division, Natural Resources Conservation Service, 
Room 6819 South Building, Washington, DC 20250-2890 or electronically 
at: http://www.nrcs.usda.gov/programs/wrp/ under the Program 
Information title.

Regulatory Flexibility Act.

    The Regulatory Flexibility Act is not applicable to this interim 
final rule because the Commodity Credit Corporation (CCC) is not 
required by 5 U.S.C. 553, or by any other provision of law, to publish 
a notice of proposed rulemaking with respect to the subject matter of 
this rule.

Environmental Analysis

    A programmatic environmental assessment has been prepared in 
association with the interim final rulemaking published on January 15, 
2009. The provisions of this interim final rule do not alter the 
assessment and the findings that were originally prepared. The analysis 
has determined that there will not be a significant impact to the human 
environment and as a result, an Environmental Impact Statement is not 
required to be prepared (40 CFR part 1508.13). NRCS has extended the 
public comment period for the Environmental Analysis (EA) and Finding 
of No Significant Impact (FONSI) until July 2, 2009. A copy of the EA 
and FONSI may be obtained from the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/. A hard copy may also be 
requested from the following contact and address: National 
Environmental Coordinator, Natural Resources Conservation Service, 
Ecological Sciences Division, 1400 Independence Ave., SW., Washington, 
DC 20250. Comments from the public should be specific and reference 
that comments provided are on the EA and FONSI. Public comment may be 
submitted by any of the following means: (1) E-mail comments to 
[email protected], (2) e-mail to e-gov Web site http://www.regulations.gov, or (3) written comments to: National Environmental 
Coordinator, Natural Resources Conservation Service, Ecological 
Sciences Division, 1400 Independence Ave., SW., Washington, DC 20250.

Civil Rights Impact Analysis

    NRCS has determined through a Civil Rights Impact Analysis that the 
issuance of the interim final rule published on January 15, 2009, 
disclosed no disproportionately adverse impacts for minorities, women, 
or persons with disabilities. The provisions of this interim final rule 
do not alter the analysis that was originally prepared. Copies of the 
Civil Rights Impact Analysis are available, and may be obtained from 
the Director, Easement Programs Division, Natural Resources 
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or 
electronically at http://www.nrcs.usda.gov/programs/WRP.

Paperwork Reduction Act

    Section 2904 of the 2008 Act requires that the implementation of 
this provision be carried out without regard to the Paperwork Reduction 
Act, chapter 35 of title 44, United States Code. Therefore, NRCS is not 
reporting recordkeeping or estimated paperwork burden associated with 
this amendment or the January 15, 2009 interim final rule.

Government Paperwork Elimination Act

    NRCS is committed to compliance with the Government Paperwork 
Elimination Act and the Freedom to E-File Act, which require government 
agencies in general and NRCS in particular, to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible.

Executive Order 12988

    This interim final rule has been reviewed in accordance with 
Executive Order 12988, Civil Justice Reform. The provisions of this 
interim final rule are not retroactive and preempt State and local laws 
to the extent that such laws are inconsistent with this interim final 
rule. Before an action may be brought in a Federal court of competent 
jurisdiction, the administrative appeal rights afforded persons at 7 
CFR parts 11, 614, and 780 must be exhausted.

Federal Crop Insurance Reform and Department of Agriculture 
Reorganization Act of 1994

    Pursuant to section 304 of the Federal Crop Insurance Reform Act of 
1994 (Pub. L. 103-354), NRCS classified this rule as non-major. 
Therefore, a risk analysis was not conducted.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), USDA assessed the effects of this interim final rule 
on State, local, Tribal Governments, and the public. This rule does not 
compel the expenditure of $100 million or more by any State, local, 
Tribal Governments, or anyone in the private sector; therefore, a 
statement under section 202 of the Unfunded Mandates Reform Act of 1995 
is not required.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The January 15, 2009, interim final rule was a major rule as 
defined by Section 804 of the Small Business Regulatory Enforcement 
Fairness Act of 1996. This interim final rule will not result in an 
annual effect on the economy of $100 million or more; a major increase 
in costs or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based companies to compete in domestic and export markets. The 
provisions of this interim final rule do not alter the original 
determination under SBREFA. However, section 2904(c) of the 2008 Act 
requires that the Secretary use the authority in section 808(2) of 
title 5, United States Code, which allows an agency to forego SBREFA's 
usual 60-day Congressional Review delay of the effective date of a 
major regulation if the agency finds that there is a good cause to do 
so. NRCS hereby determines that it has good cause

[[Page 26283]]

to do so in order to meet the Congressional intent to have the 
conservation programs authorized or amended by Title II in effect as 
soon as possible. Accordingly, this rule is effective upon filing for 
public inspection by the Office of the Federal Register.

Executive Order 13132

    E.O. 13132 requires NRCS to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' E.O. 13132 defines the term ``Policies that have 
federalism implications'' to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
E.O. 13132, NRCS may not issue a regulation that has federalism 
implications, that imposes substantial direct compliance costs, and 
that is not required by statute, unless the Federal government provides 
the funds necessary to pay the direct compliance costs incurred by 
State and local governments, or NRCS consults with State and local 
officials early in the process of developing the proposed regulation. 
NRCS shows sensitivity to federalism concerns by requiring the State 
Conservationist to meet with and provide opportunities for involvement 
of State and local governments through the State Technical Committee. 
The interim final rule published on January 15, 2009, will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government as 
specified in E.O. 13132. The provisions of this interim final rule do 
not alter this determination. Thus, the Executive Order does not apply 
to this rule.

Executive Order 13175

    This interim final rule has been reviewed in accordance with 
Executive Order 13175, Consultation and Coordination with Tribal 
Governments. NRCS has assessed the impact of this interim final rule on 
Tribal Governments and has concluded that this rule will not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.

Discussion of Program

Background

    This Amendment is effective on the date published in the Federal 
Register. The WRP is a voluntary program that provides assistance to 
eligible landowners to restore and protect wetlands. The 2008 Act made 
several program changes to WRP implementation which NRCS incorporated 
into the January 15, 2009, interim final rule. However, NRCS made other 
changes to the program in the interim final rule that were not 
necessitated by the 2008 Act amendments. In particular, the January 15, 
2009, interim final rule revised the nature of the relationship that 
NRCS and a landowner have in regards to the restoration and management 
of lands enrolled in the program.
    The interim final rule introduced several new provisions that place 
a landowner in violation of the easement if a landowner either fails to 
complete the restoration activities on the easement or if the landowner 
transfers the property to a person or entity that is ineligible to 
receive payment or unwilling to complete the restoration activities. 
The preamble discussion explained that this policy will create 
situations where NRCS expends funds for the enrollment and acquisition 
of an easement, but is not able to restore such enrolled lands because 
of subsequent actions or inactions taken by the landowner. Furthermore, 
the interim final rule specified that, as a violation of the easement, 
NRCS has the right to have the easement remain in force and to seek a 
refund of any payments made in furtherance of the enrollment. However, 
the easement lands will remain unrestored, and therefore not meet the 
basic purpose of the program.
    After further review, NRCS has determined that the authority 
provided under the WRP statute is broad enough to avoid this result by 
allowing the parties at the time of enrollment to agree to the method 
of restoration completion. Specifically, the purpose of WRP is for NRCS 
to assist landowners with the restoration, enhancement, and protection 
of the wetlands on their property through the purchase of an easement; 
the cost-sharing of practices and activities; and the management, 
monitoring, and enforcement of the easement area in accordance with the 
easement terms and conditions. The WRP statute provides discretion for: 
(1) NRCS to include terms and conditions in the WRP deed with the 
landowner which further the practical administration of the program; 
and (2) NRCS to enter into an agreement with the landowner for the 
implementation of the Wetland Reserves Plan of Operation (WRPO). The 
types of violation situations described above can be avoided if NRCS 
and the landowner agree, at the time of enrollment, that under the 
terms of the deed, NRCS may restore, protect, enhance, maintain, and 
manage activities on the easement area by providing cost-share 
assistance directly to the landowner, or as determined necessary by 
NRCS, through another person or entity.
    NRCS interprets the authority and discretion provided under 16 USC 
3837d(b) to allow NRCS to make such payments to restore and maintain 
the easement area. In particular, 16 USC 3838d(b) provides that NRCS 
may make payments to others without ``regard to any other provision of 
law'' and in a manner NRCS ``determines is fair and reasonable.'' In 
this way, NRCS is able to ensure that all properties enrolled in WRP 
are able to be restored as contemplated by the WRP statute despite 
events subsequent to enrollment.
    NRCS remains subject to the statutory limitations regarding the 
level of cost-share assistance payments that can be made, whether such 
assistance is made directly to the landowner or through another person 
or entity. Therefore, for 30-year easements, NRCS may not provide more 
than 75 percent of the cost of establishing or installing conservation 
practices or activities specified in the WRPO.
    Accordingly, NRCS is amending the January 15, 2009, interim final 
rule to maintain the efficient working relationship between NRCS and 
landowners enrolled in the program and ensure that the Federal 
conservation investment is protected. NRCS is adding language to Sec.  
1467.4 and Sec.  1467.7 to clarify the scope of the agreement between 
NRCS and the landowner entered into at the time of enrollment. NRCS is 
also removing language in Sec.  1467.7(c)(1) and Sec.  1467.10(e) that 
established the basis for determining a landowner in violation and 
recoupment of costs if the land subject to an easement was sold to an 
ineligible landowner prior to completion of the restoration practices.
    Additionally, NRCS is making a correction to the eligibility 
criteria related to closed basin lakes and potholes at Sec.  
1467.4(e)(5). The IFR established that the depth of 6.5 feet would be 
determined at the time of enrollment. Water depths vary throughout the 
year and from year to year due to the dynamic aspects related to 
flooding in these systems. Since the time of enrollment is when NRCS is

[[Page 26284]]

taking the administrative action regarding the signing of documents 
rather than assessing site conditions, NRCS determined that the time of 
enrollment is not the appropriate stage in the process for determining 
water depth eligibility. Therefore, NRCS is removing the clause related 
to ``at the time of enrollment'' from Sec.  1467.4(e)(5). NRCS will 
base its determination concerning eligibility as soon as practicable 
after receiving the landowner application and prior to enrollment.
    NRCS is taking this opportunity to notify the public of its 
continued dedication to proactive restoration of lands enrolled in WRP. 
In the January 15, 2009, interim final rule, NRCS added language to 
Sec.  1467.12, ``the WRPO Development,'' to affirm its dedication to 
the adoption of more proactive restoration and enhancement practices: 
``Specifically, the WRPO will consider and address, to the extent 
practicable, the on-site alternations and the off-site watershed 
conditions that adversely impact the hydrology and associated wildlife 
and wetland functions and values.''
    NRCS believes that the long-term cost-effectiveness of its wetland 
restoration and management efforts requires that greater investment be 
made in the initial implementation of practices that create the 
appropriate conditions for wetland flora and fauna to thrive. For 
example, NRCS incorporates micro-topography into restoration practices 
to mimic the oxbows of flooding and to disrupt the establishment of 
noxious weeds. NRCS designs longer slope lengths on its berms to 
increase the amount of shallow water available to shorebirds and to 
minimize damage to the berm from flood overflow. These practices may 
cost more than plugging a ditch or breaking known locations of drainage 
tile, but are necessary to reduce long-term management headaches and to 
realize the WRP purposes of maximizing wildlife and wetland functions 
and values. NRCS believes that quality restoration efforts result in 
more fully meeting WRP statutory intent, increasing landowner 
satisfaction, and benefitting local communities from increased sources 
of recreational income.

List of Subjects in 7 CFR Part 1467

    Administrative practice and procedure, Agriculture, Soil 
conservation, Wetlands, and Wetland protection.


0
For the reasons stated in the preamble, the CCC amends part 1467 of 
Title 7 of the Code of Federal Regulations as set forth below:
0
1. The authority citation for part 1467 continues to read as follows:

    Authority: 16 U.S.C. 3837 et seq.


0
2. Section 1467.4 is amended by revising paragraph (a)(2) and (e)(5) to 
read as follows:


Sec.  1467.4  Program requirements.

    (a) * * *
    (2) To participate in WRP, a landowner must agree to the 
implementation of a WRPO, the effect of which is to restore, protect, 
enhance, maintain, and manage the hydrologic conditions of inundation 
or saturation of the soil, native vegetation, and natural topography of 
eligible lands. NRCS may provide cost-share assistance through a 
restoration cost-share agreement or an easement restoration agreement 
for the conservation practices and activities that promote the 
restoration, protection, enhancement, maintenance, and management of 
wetland functions and values. For easement transactions, NRCS may 
implement such conservation practices and activities through an 
agreement with the landowner, a contract with a vendor, or a 
cooperative agreement with a cooperating entity. Specific restoration, 
protection, enhancement, maintenance, and management actions may be 
undertaken by the landowner, NRCS, or other designee.
* * * * *
    (e) * * *
    (5) Land under paragraph (e)(3)(ii)(B) of this section may be 
considered for enrollment into 30-year easements if it meets the 
criteria under paragraph (e)(3) of this section, it is located in the 
Prairie Pothole Region as defined under Sec.  1467.3 of this part, and 
the size of the parcel offered for enrollment is a minimum of 20 
contiguous acres. Such land meets the requirement of likelihood of 
successful restoration only if the soils are hydric and the depth of 
water is 6.5 feet or less.
* * * * *

0
3. Section 1467.7 is amended by revising paragraph (c)(1), 
redesignating paragraph (d) as paragraph (e), adding a new paragraph 
(d) to read as follows:


Sec.  1467.7  Enrollment process.

* * * * *
    (c) Acceptance and effect of offer of enrollment. (1) Easement. For 
applications requesting enrollment through an easement, an option 
agreement to purchase will be presented by NRCS to the landowner, which 
will describe the easement area; the easement compensation amount; the 
easement terms and conditions; and other terms and conditions for 
participation that may be required by NRCS as appropriate. The 
landowner accepts enrollment in the WRP by signing the option agreement 
to purchase. NRCS will continue with easement acquisition activities 
after the property has been enrolled.
* * * * *
    (d) Restoration responsibility and the scope of enrollment. (1) The 
enrollment document establishes the terms of enrollment consistent with 
the terms and conditions of this part, and identifies the:
    (i) Scope of the agreement between NRCS and the landowner;
    (ii) Basis for NRCS to obligate funds; and
    (iii) Nature and method through which NRCS will provide WRP 
technical and financial assistance to the landowner.
    (2) The option agreement to purchase between NRCS and the landowner 
under the easement option constitutes the agreement for:
    (i) Granting an easement on the enrolled land as set forth under 
Sec.  1467.11;
    (ii) Implementing a WRPO which provides for the restoration and 
protection of the functions and values of wetlands;
    (iii) Recording the easement in accordance with applicable State 
law; and
    (iv) Ensuring the title to the easement is superior to the rights 
of all others, except for exceptions to the title that are deemed 
acceptable by NRCS.
    (3) The terms of the easement identified in paragraph (d)(2)(i) of 
this section includes the landowner's agreement to the implementation 
of a WRPO identified in paragraph (d)(2)(ii) of this section. In 
particular, the easement deed identifies that NRCS has the right to 
enter the easement area to undertake, on a cost-share basis with the 
landowner or other entity, any activities to restore, protect, manage, 
maintain, enhance, and monitor the wetland and other natural values of 
the easement area.
    (4) At the time NRCS enters into an agreement to purchase, NRCS 
agrees, subject to paragraph (e) of this section, to acquire and 
provide for restoration of the land enrolled into the program.
* * * * *


Sec.  1467.10  [Amended]

0
4. Section 1467.10 is amended by removing paragraph (e).
0
5. Section 1467.11 is amended by removing paragraphs (a)(5) and (b)(4),

[[Page 26285]]

and by revising paragraphs (a)(2)(iv) and (b)(2)(iii) to read as 
follows:


Sec.  1467.11  Easement and 30-year contract participation 
requirements.

    (a) * * *
    (2) * * *
    (iv) The right to restore, protect, enhance, maintain, and manage 
activities on the easement area.
* * * * *
    (b) * * *
    (2) * * *
    (iii) The right to restore, protect, enhance, maintain, and manage 
activities on the enrolled area.
* * * * *

0
6. Section 1467.12 is amended by adding a new sentence at the end of 
paragraph (b) to read as follows:


Sec.  1467.12  The WRPO development.

* * * * *
    (b) * * * NRCS will review, revise, and supplement the WRPO as 
needed throughout the duration of the enrollment to ensure that program 
goals are fully and effectively achieved.
* * * * *

    Signed this 26th day of May 2009, in Washington, DC.
Virginia (Ginger) L. Murphy,
Acting Vice President, Commodity Credit Corporation and Acting Chief, 
Natural Resources Conservation Service.
[FR Doc. E9-12680 Filed 6-1-09; 8:45 am]
BILLING CODE 3410-16-P